the Iola Barker and James Trice v. Monica Hurst and Scott Martindale ( 2021 )

Opinion issued June 15, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00529-CV
———————————
THE IOLA BARKER AND JAMES TRICE, Appellants
V.
MONICA HURST AND SCOTT MARTINDALE, Appellees
On Appeal from the 12th District Court
Grimes County, Texas
Trial Court Case No. 34,116
OPINION
In a previous appeal, appellants, The Iola Barker (“the Barker”) and James
Trice, challenged the trial court’s denial of their motion to dismiss, under the Texas
Citizens’ Participation Act (“TCPA”),1 the defamation claims brought against them
by appellees, Monica Hurst and Scott Martindale. See The Iola Barker v. Hurst, No.
01-17-00838-CV, 2018 WL 3059795, at *1 (Tex. App.—Houston [1st Dist.] June
21, 2018, no pet.) (mem. op.). After we reversed and remanded, the trial court
granted appellants’ TCPA motion, dismissed appellees’ claims, and awarded
appellants statutory attorney’s fees, costs, and expenses. In the instant appeal,
appellants contend, through three issues, that the trial court erred in not awarding
them the full amount of their attorney’s fees, costs, and expenses.
We affirm in part and reverse and remand in part.
Background
In April 2017, the Iola Independent School District (the “District”) sought a
“District of Innovation” (“DOI”) designation, authorizing it to declare exemptions
from certain provisions of the Texas Education Code.2 Id. The Barker, an
anonymous blog, published several articles about the potential effects that it believed
such designation might have on teachers, administrators, students, and parents, and
it encouraged readers to attend public hearings on the issue. Id.Before one such District hearing, the Barker reported that Hurst, the District’s
Director of Technology, had publicly posted on her Facebook page a “meme,” or
1
See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.
2
See TEX. EDUC. CODE §§ 12A.001–.009.
2
photograph with superimposed comments, depicting a scene from a movie, Men in
Black.3 Id. The Barker re-published the meme, adding commentary, as follows:
For your judgment, here is a post that was on a member of
administrations’ Facebook page and was open to the public.
Sure, it seems innocent until you realize what the device in the picture
accomplishes. As previously discussed, this device is a Neuralizer
and it wipes the memories (opinions) of those that it is used on and
the user then replaces the wiped memories (opinions) with what they
want the victim to believe. To us this is implying that we can form
our own opinions but they are going to ignore them and do exactly
what they want to do and assume that everyone shares the
administration’s opinions . . . .
Id.
3
MEN IN BLACK (Columbia Pictures 1997).
3
On April 21, 2017, Hurst brought a suit for injunction against the Barker,
complaining that its re-publishing of her Facebook posting, which included her
Facebook profile picture depicting her husband and two minor children, was
malicious and intended to harm her and her family. Id. She sought an injunction to
prevent the Barker “from utilizing the photographs of children or anyone else,
without the written permission and consent of the natural mother or father of any
child.” Id. Through discovery, Hurst identified Trice as the author of the blog. Id.
In June 2017, Martindale, a District principal, joined the lawsuit, bringing a
claim against the Barker and Trice for libel per se. Id. at *2. Martindale alleged
that, in April 2017, the Barker published several stories mentioning him by name
and that such acts were malicious and intended to harm him and his family. Id.
On August 18, 2017, appellants filed a TCPA motion to dismiss the suit,
asserting that appellees had brought their claims simply to uncover Trice’s identity
and to quell his exercise of the right of free speech. Id. They asserted that the
statements at issue involved discussion of the District’s attempt to obtain a DOI
designation, and the blog posts discussed appellees solely within the context of their
actions as public officials, both as administrators at the District and as members of
the planning committee. Id. Further, appellants asserted, appellees could not
establish by clear and specific evidence a prima facie case for each essential element
4
of their claims.4 Id. Appellants sought dismissal with prejudice and asserted that
they were statutorily entitled to an award of attorney’s fees and sanctions.5 Id.
Days later, on August 22, 2017, Hurst filed a motion for nonsuit without
prejudice, stating that she no longer wished to prosecute her claim. Id. The trial
court granted her motion, dismissing her claims without prejudice. Id.
In his response to the motion to dismiss, Martindale attached, as his evidence
to defeat the TCPA motion, his affidavit and that of a teacher, Jenna Conner, and
100 pages of blog entries from the Barker. Id. In his affidavit, Martindale testified
that, on April 25, 2017, in a blog titled, “Donnez-leur un pouce et ils prendront un
mile,” the Barker commented:
It appears to us that they haven’t had any issues getting rid of our
teachers. Oh, by the way, this week is the week for the School Board to
vote on teacher[s’] contracts. Now that Martindale’s wife is an Iola ISD
employee, it will be much easier for them to choose which ones they
need to get rid of to open positions for their friends, i.e. the kindergarten
teacher that use [sic] to be the Martindale[s’] nanny.
Id.
Martindale complained that the statement alleged that he had “engaged in
improper terminating and hiring practices by forcing out an existing teacher so that
he could hire an individual [who] had previously worked for him and his family as
a nanny.” Id. He identified the teacher referenced as Jenna Conner, whom, he
4
See TEX. CIV. PRAC. & REM. CODE § 27.005(c).
5
See id. § 27.009.
5
asserted, had not worked for him or his family. Id. He complained that Trice had
not spoken with him to verify the veracity of the comment before publishing it and
that the accusation was “blatantly untrue.” Id. He asserted that the publication had
“injured [his] reputation,” “exposed [him] to contempt in the community,” and
“called into question [his] honesty, integrity, virtue, and reputation.” Id. Conner, in
her affidavit, testified that she believed that she was the teacher referenced in the
comment, that she had never worked as a nanny for Martindale or his family, and
that Trice had not spoken with her. Id.
Martindale asserted, as evidence of the elements of his defamation claim6 to
defeat the TCPA motion to dismiss, that Trice had published in the Barker the
statement at issue, i.e., that he engaged in improper hiring practices, that the
affidavits established the falsity of the statement, and that the statement was
defamatory because it tended to injure his reputation, personally and professionally.
Id. at *3. To establish actual malice, Martindale requested a continuance in order to
depose Trice. Id. Martindale asserted that “there [was] no requirement that proof
of damages be offered” because the statement at issue was “defamatory per se.” Id.
After a hearing, the trial court found that the TCPA applied to Martindale’s
claim because it was based on appellants’ exercise of the right of free speech, the
6
See id. § 73.001; Deaver v. Desai, 483 S.W.3d 668, 676 (Tex. App.—Houston [14th
Dist.] 2015, no pet.) (listing elements of defamation claim).
6
communication at issue was made in connection with a matter of public concern,
and that Martindale was a “public official or public figure.” Id. And, Martindale
had established, by clear and specific evidence, that appellants had “made a false
statement of fact to a third person,” that “the statement was defamatory concerning
[Martindale],” and that the statement caused damage to Martindale. Id. The trial
court ordered that good cause existed to allow Martindale, as requested, to take
Trice’s deposition on the “limited issue of actual malice.” Id. On October 25, 2017,
appellants’ motion to dismiss was denied by operation of law.7 Id.On appeal, appellants asserted that their motion to dismiss survived Hurst’s
nonsuit and that the trial court erred in denying their motion to dismiss the claims
against them because Hurst did not establish by “clear and specific evidence a prima
facie case for each essential element” of her claim. Id. Because Hurst’s nonsuit did
not resolve appellants’ TCPA motion to dismiss and there was no indication in the
record that the trial court actually considered the motion on the merits with respect
to Hurst, we remanded the issue. Id. at *6. With respect to Martindale’s claim, we
held that the trial court erred in denying appellants’ motion because the complained-
of statement did not constitute defamation per se and Martindale did not meet his
burden to present clear and specific evidence of injury and damages. Id. at *9. We
7
See TEX. CIV. PRAC. & REM. CODE § 27.008(a) (“If a court does not rule on a motion
to dismiss . . . in the time prescribed . . . , the motion is considered to have been
denied by operation of law and the moving party may appeal.”).
7
reversed the trial court’s order and remanded for dismissal and a determination of
attorney’s fees and sanctions consistent with the TCPA. Id.
On remand, the trial court dismissed appellees’ claims, noted that appellants
were entitled to recover attorney’s fees, court costs, and expenses, and directed that
they submit evidence in support. Appellants filed a Memorandum in Support of
Attorney’s Fees and Sanctions, to which they attached, as discussed below, detailed
billing statements and the affidavits of their trial and appellate counsel, Alicia
Calzada, and of their expert on attorney’s fees, Thomas S. Leatherbury. Appellees
filed a response, to which they appended the affidavits of their experts on attorney’s
fees, Roy D. Brantley and Terrance D. Dill, Jr.
In its final judgment, the trial court ordered that Trice recover “attorney’s fees,
court costs and expenses” from Hurst in the amount of $7,000.00 and from
Martindale in the amount of $9,000.00. It also awarded conditional appellate
attorney’s fees and ordered that Hurst and Martindale each pay Trice $2,500.00 as
sanctions. Findings of fact and conclusions of law were not filed.
Attorney’s Fees, Costs, and Expenses
8
In their first issue, appellants argue that the trial court erred in awarding them
only $9,000.00 in attorney’s fees against Martindale and $7,000.00 in attorney’s fees
against Hurst because appellants presented “clear, detailed specific evidence
following the lodestar method and in compliance with Rohrmoos Venture [v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019)].” In a sub-issue, appellants
argue that the trial court erred in overruling their objections to appellees’
controverting affidavits because, as pertinent here, the testimony by Brantley and
Dill was conclusory and constituted no evidence. In their second issue, appellants
assert that the trial court erred in “not awarding mandatory court costs and
uncontroverted expenses.” In their third issue, appellants assert that the trial court
erred in awarding appellate attorney’s fees. We address these interrelated issues
together.
Standard of Review and Governing Legal Principles
The purpose of the TCPA is “to encourage and safeguard the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise participate
in government to the maximum extent permitted by law.” TEX. CIV. PRAC. & REM.
CODE § 27.002. It “protects citizens . . . from retaliatory lawsuits that seek to
intimidate or silence them” from exercising their First Amendment freedoms and
provides a procedure for the expedited dismissal of such suits. In re Lipsky, 460
S.W.3d 579, 584, 586 (Tex. 2015). The TCPA is intended to identify and summarily
9
dispose of lawsuits “designed only to chill First Amendment rights, not to dismiss
meritorious lawsuits.” Id. at 589. It is to be “construed liberally to effectuate its
purpose and intent fully.” TEX. CIV. PRAC. & REM. CODE § 27.011(b).
A defendant who believes that a lawsuit is based on his valid exercise of First
Amendment rights may move for expedited dismissal of the suit. Lipsky, 460
S.W.3d at 586. The defendant must first show by a preponderance of the evidence
that the TCPA applies, that is, that the plaintiff’s legal action is based on, relates to,
or is in response to certain actions, including the defendant’s exercise of: (1) the
right of free speech; (2) the right to petition; or (3) the right of association. Id. at
586–87; see also TEX. CIV. PRAC. & REM. CODE §§ 27.001(6), 27.005(b), 27.010(b);
James v. Calkins, 446 S.W.3d 135, 145 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied). If the initial showing is made, the burden shifts to the plaintiff to establish
by “clear and specific evidence a prima facie case for each essential element of the
claim in question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). If the defendant’s
constitutional rights are implicated and the plaintiff does not meet the required
showing, the trial court must dismiss the plaintiff’s claim. Id. § 27.005.
10
The version of Civil Practice and Remedies Code section 27.0098 applicable
to this case states that a trial court that orders dismissal of a legal action “shall award”
the movant:
(1) court costs, reasonable attorney’s fees, and other expenses
incurred in defending against the legal action as justice and
equity may require; and
(2) sanctions against the party who brought the legal action as the
court determines sufficient to deter the party who brought the
legal action from bringing similar actions described in this
chapter.
Id. § 27.009; see Sullivan v. Abraham, 488 S.W.3d 294, 298–99 (Tex. 2016) (holding
that section 27.009 “reflects both that costs and attorney’s fees are ‘expenses’ and
that they must all be ‘incurred’ in defending the legal action”).9
A determination of “reasonable attorney’s fees” rests within the sound
discretion of the trial court and will not be reversed absent an abuse of that discretion.
See Sullivan, 488 S.W.3d at 299. A trial court abuses its discretion if its decision is
arbitrary, unreasonable, and without reference to guiding principles. Goode v.
8
Because this case was filed prior to the effective date of the 2019 amendments to
the TCPA, the prior version of the statute governs this appeal. See Act of May 17,
2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684; see also id. at §§ 11–12,
2019 Tex. Gen. Laws at 687.
9
The Texas Supreme Court has noted that although the legislature sometimes
employs the terms “reasonable and necessary” and sometimes just the term
“reasonable,” the distinction between the provisions is immaterial. Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 488–89 (Tex. 2019). A
claimant seeking attorney’s fees from the opposing party must prove that the
requested fees are both reasonable and necessary. Id.
11Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). When a trial court does not specify the
basis for its attorney’s fee award, we will uphold its ruling on any basis supported
by the evidence. See Weingarten Realty Inv’rs v. Harris Cty. Appraisal Dist., 93
S.W.3d 280, 283 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
The “reasonable” standard is a question of fact to be determined by the fact
finder and acts as a limit on the amount of fees that a prevailing party can shift to the
non-prevailing party. Rohrmoos Venture, 578 S.W.3d at 489. Generally, in
determining the reasonableness of attorney’s fees, courts consider:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal
service properly;
(2) the likelihood . . . that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997);
see also Wayland v. City of Arlington, 711 S.W.2d 232, 233 (Tex. 1986) (“One of
12
the factors in determining the reasonableness of attorney’s fees [is] the amount of
damages awarded.”); Calhoun/Holiday Place, Inc. v. Wells Fargo Bank, N.A., No.
01-14-00872-CV, 2016 WL 7671372, at *8 (Tex. App.—Houston [1st Dist.] Dec.
22, 2016, pet. denied) (mem. op.) (“A trial court need not receive evidence on each
Arthur Andersen factor. . . .”).
Here, appellants applied for attorney’s fees under the “lodestar method.”
Rohrmoos Venture, 578 S.W.3d at 496. The lodestar method was developed as a
“short hand version” of the Arthur Andersen factors. Id. Although the lodestar
method was “never intended to be a separate test or method,” it is a “focused and
objective analysis of whether the fees sought are reasonable and necessary.” Id. The
calculation “yield[s] a base figure that reflects most Arthur Andersen factors and is
thus presumptively reasonable.” Id. However, the figure is subject to adjustment if
the presumption is overcome by other Arthur Andersen factors not accounted for in
the base lodestar figure. Id.
Under a lodestar analysis, the determination of what constitutes a reasonable
attorney’s fee involves two steps:
First, the court must determine the reasonable hours spent by counsel
in the case and a reasonable hourly rate for such work. The court then
multiplies the number of such hours by the applicable rate, the product
of which is the base fee or lodestar. The court may then adjust the base
lodestar up or down (apply a multiplier), if relevant factors indicate an
adjustment is necessary to reach a reasonable fee in the case.
Id. at 494 (quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)).
13
Thus, under the first step, the factfinder determines the reasonable hours that
counsel worked on the case and the reasonable hourly rate for such work. Id. at 498.
The factfinder then multiplies the number of hours worked by the applicable rate.
Id. There is a presumption that the base lodestar calculation, when supported by
sufficient evidence, reflects the reasonable and necessary attorney’s fees that can be
shifted to the non-prevailing party. Id. at 499.
It is the fee claimant’s burden to provide sufficient evidence. Id. at 498. This
includes evidence of (1) the particular services performed, (2) who performed those
services, (3) approximately when the services were performed, (4) the reasonable
amount of time required to perform the services, and (5) the reasonable hourly rate
for each person performing such services. Id. Contemporaneous billing records are
not required to prove that the requested fees are reasonable. Id. at 502. However,
“[g]eneral, conclusory testimony devoid of any real substance will not support a fee
award.” Id. at 501. Generalities about tasks performed provide insufficient
information for the factfinder to meaningfully review whether the tasks and hours
were reasonable and necessary. El Apple I, 370 S.W.3d at 763. Rather, there must
be some evidence to inform the trial court of the time spent on specific tasks to
enable the factfinder to meaningfully review the requested fees. Long v. Griffin, 442
S.W.3d 253, 255 (Tex. 2014). Charges for duplicative, excessive, or inadequately
documented work should be excluded. El Apple I, 370 S.W.3d at 762.
14
The second step allows the factfinder to determine whether evidence of other
considerations overcomes the presumption of reasonableness. Rohrmoos Venture,
578 S.W.3d at 501. The base figure may be increased if considerations establish that
it represents an unreasonably low fee award and thus deprives the prevailing party’s
attorney of fair compensation. Id. at 502. Likewise, the base figure may be
decreased if such considerations establish that the fee is unreasonably high or
excessive, creating a windfall for the prevailing party or its attorney. Id. A fee
claimant seeking an enhancement must produce specific evidence showing that a
higher amount is necessary to achieve a reasonable fee award. Id. at 501. And, a
fee opponent seeking a reduction bears the burden of providing specific evidence to
overcome the presumptive reasonableness of the base figure. Id.
The non-exclusive considerations under the second step may include any not
subsumed in the first step, such as: (1) the time and labor required, (2) the novelty
and difficulty of the questions involved, (3) the skill required to perform the legal
service properly, (4) the fee customarily charged in the locality for similar legal
services, (5) the amount involved, (6) the experience, reputation, and ability of the
lawyer or lawyers performing the services, (7) whether the fee is fixed or contingent
on results obtained, (8) the uncertainty of collection before the legal services have
been rendered, and (9) the results obtained. Id. at 500.
1. Base Lodestar Calculation
15
Here, in support of their claim for attorney’s fees, appellants presented their
billing invoices and the affidavits of their trial and appellate counsel, Calzada, and
their expert on attorney’s fees, Leatherbury.
In her affidavit, as supplemented, Calzada testified regarding the work
performed by The Rifle Law Firm (“Rifle”), Haynes and Boone, LLC (“Haynes”),
and the Calzada Law Firm between May 2017 and April 2019 and the hourly rates
charged. From May to August 2017, appellants were represented by Rifle, where
attorney “JLB” performed 2.10 hours of work at $250.00 per hour, for a total of
$525.00. Subsequently, from August to September 2017, appellants were
represented by Haynes, where partner Laura Prather performed a total of 6.50 hours
of work at a rate of $525.00 per hour, for a total of $3,412.50. Calzada, who was
then a Haynes associate, performed 58.00 hours of work at $350.00 per hour, for a
total of $20,300.00. Haynes associate Mark Flores performed 6.0 hours of work at
a rate of $450.00 per hour. However, his time was “written off.” Haynes paralegal
Olga Marshall worked 2.50 hours at a rate of $195.00 per hour, for a total of $487.50.
In October 2017, Calzada opened her own practice. Thereafter, she performed 144
hours of work at $250.00 per hour, for a total of $36,000.00. Multiplying the hours
worked by each applicable rate yields total fees of $60,725.00. See Rohrmoos
Venture, 578 S.W.3d at 498.
Calzada testified in detail regarding the work that was performed, as follows:
16
13. The defense work done to protect and preserve the rights
of defendants at the trial court level included: reviewing the claims,
considering strategic options for defending against the claims,
conferring with client at various points in the case, reviewing and
analyzing constantly evolving case law, drafting the initial Motion to
Dismiss Pursuant to the TCPA, drafting reply to Response to Motion to
Dismiss, drafting related affidavits, reviewing the motion for non-suit,
drafting pleading to court regarding non-suit, researching joint and
several liability, preparing for hearing on the Motion to Dismiss,
drafting a memorandum on attorney’s fees in 2017, reviewing a
retraction request from Plaintiff, reviewing discovery request, drafting
response to discovery request, and drafting a memo in support of
dismissal with prejudice, attending and participating in the hearing,
drafting a response to objections to the affidavit, and drafting a request
for the court to rule within the 30-day deadline as well as other
pleadings.
14. When the trial court did not rule within the statutorily
required 30 days, an appeal was required. . . .
15. Believing that Plaintiffs were proceeding with their
claims, Defendants were forced to proceed with their appeal and mount
a vigorous argument on appeal. On the day their appellee brief was due,
Plaintiffs filed a letter with the court of appeals stating that they would
not be filing a response. . . .In doing so, Plaintiffs continued this lawsuit
at great expense to defendants, while incurring little personal cost.
16. On appeal, the work performed included . . . drafting the
Appell[ants’] Brief . . . . In its opinion, the First Court of Appeals
reversed the denial of the Motion to Dismiss, remanding Martindale’s
claims for dismissal and determination of attorney’s fees and sanctions.
It remanded Hurst’s claim for determination of the TCPA on the merits
as to Hurst’s claim. . . .
17. Now that the case has been remanded back to this Court,
time has been spent drafting a memorandum updating the court with the
status of the case, drafting proposed orders, . . . communicating with
court, drafting the Memo in Support of Martindale Attorney’s Fees,
affidavits related to attorney’s fees and sanctions, and communications
with Defendants . . . .
17
Calzada supported her affidavit with billing invoices. The invoices also
reflect that, from May to August 2017, appellants were represented by Rifle, where
attorney “JLB” performed 2.10 hours of work at $250.00 per hour. From August to
September 2017, appellants were represented by Haynes, where Prather worked 6.50
hours at $525.00 per hour, Calzada worked 58.00 hours of work at $350.00 per hour,
Flores worked 6.0 hours at no charge, and Marshall worked 2.50 hours at $195.00
per hour. And, from October 2017 through April 2019, Calzada worked for 144
hours at $250.00 per hour. Each invoice details the services performed, the length
of time, the dates performed, and by whom. In sum, the invoices reflect total hours
of 219.10 and total billing, after discounts, of $59,500.00.
Further, Calzada, in her supplemental affidavit, segregated the fees
attributable to defending against the claims of each plaintiff as follows:
11. . . . [appellants] have incurred $60,903.50 in attorney’s fees,
expenses and court costs defending against the claims of [Martindale].
Of that, $50,071.00 was jointly and severally incurred while defending
against the claims of both Martindale and Hurst, and not reasonably
segregable.
12. . . . [appellants] have incurred $59,501.43 in attorney’s fees and
court costs defending against the claims of [Hurst]. Of that, $50,071.00
was jointly and severally incurred while defending against the claims
of both Hurst and Martindale, and not reasonably segregable.
With respect to the reasonableness of the hourly rate for each person
performing services, Calzada testified that she has been a licensed, practicing
attorney in Texas since 2011. See Rohrmoos Venture, 578 S.W.3d at 498. She
18
primarily practices in Bexar, Dallas, Harris, and Travis Counties, and she has
knowledge and experience practicing law pertaining to TCPA claims. She testified
that the rates charged in this case are comparable to or lower than rates customarily
charged by legal professionals with similar levels of experience at similar law firms
in Harris and in other counties,10 and she cited and attached numerous cases with
fees ranging from $375 to $835 per hour. She noted that she writes and speaks
regularly on the TCPA and has represented clients in numerous lawsuits involving
the TCPA, with favorable outcomes.
Further, she testified, Marshall is a certified paralegal with 10 years of
experience, and the work she performed was not clerical, was the type usually
performed by attorneys, and was supervised by Calzada.
10
This Court has held that locality is not limited to a specific county:
The appellant would have us hold that the statement, “the trier of fact
should consider the amount charged by other attorneys in the locality
doing similar work,” is limited to the charge made by other attorneys
in a specific county, in this instance Brazos County. We reject this
argument and hold that the trier of fact should consider the amount
charged by other attorneys in the general locality or area doing similar
work. Since the attorneys for each of the contestants in this appeal
were also the attorneys at the trial court level, it is obvious that they
do not restrict their practice to one county. This is so because the trial
court was located at Brazos County and this court is located in Harris
County. . . . To require that an attorney know the usual and customary
reasonable fees in every individual county or city within the area of a
trial court would be unduly restrictive.
Brazos Cty. Water Control & Imp. Dist. No. 1 v. Salvaggio, 698 S.W.2d 173, 178
(Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
19
Appellants’ expert, Leatherbury, testified in his affidavit, as follows:
2. I am a Partner in and co-leader of the Appellate Practice
Group at Vinson & Elkins LLP. . . . I have been in private practice in
Dallas since 1980 and have devoted my practice to civil trial and
appellate work since then. A great deal of that work has involved
representing publishers and broadcasters in libel, privacy and other
litigation. Since 2011, when the [TCPA] was passed, I estimate that I
have worked on 30 or more cases involving TCPA issues. I have also
written and spoken extensively about libel, privacy, and the TCPA. . . .
3. As the head of our Media Litigation Practice, I am aware
of what the prevailing rates in the industry are, and in particular, what
reasonable rates are in the area of First Amendment law. I am familiar
with the hourly rates charged across the state of Texas by lawyers with
the experience, reputation, and ability similar to that of the two lawyers
who charged fees in this case, Laura Prather and Alicia Calzada.
4. The hourly rates charged by the attorneys in this case were
well within the range of what is typically charged across the state for
similar services related to First Amendment litigation and practice, and
in cases involved the TCPA. . . .
5. The rate of $525 per hour for the work done by [Prather]—
a Partner at [Haynes], who was instrumental in the passage of the
TCPA, and who is the co-author of a seminal law review article on the
TCPA—was reasonable and well within the typical rate charged by an
attorney of her experience, reputation and ability. Ms. Prather is a
highly regarded media law attorney. . . .
6. Likewise, I am familiar with the reputation, experience
and ability of [Calzada], who was involved in the passage of the TCPA,
and who has written and spoken on the TCPA as well as other issues
related to publishing and media law. She is known as an attorney who
has successfully invoked the TCPA in numerous cases since its
inception. . . . The rate of $350 while Ms. Calzada was at [Haynes] was
reasonable and at the low-end of the range of rates charged by an
attorney of her experience, reputation and ability at a large law firm like
[Haynes]. . . . .
7. I have reviewed the invoices and billing records in this
case. Defendants’ attorneys have spent 220 hours through April 30,
2019, defending against this claim through appeal and back to the trial
20
court on remand. This is on the low end of the range of time typically
spent successfully defending a TCPA case through appeal. . . . I have
considered the fact that the Defendants had to file an Answer, Special
Exceptions, and Affirmative Defenses, a Motion to Dismiss under the
TCPA, and a Reply to Plaintiffs Response to the Motion to Dismiss. I
further considered the fact that the Defendants’ attorneys had to prepare
for and attend the hearing on the Motion to Dismiss and file additional
briefing after the hearing. When the Motion to Dismiss was denied by
operation of law, it was necessary to file an immediate, expedited,
interlocutory appeal. . . . On remand, again careful drafting of
attorney’s fees evidence and organizing supporting documents is
essential to obtaining the most favorable results for a client. Having
considered this and reviewing the billing records through April 30,
2019, it is my opinion that the time spent on this case was reasonable
and the tasks completed were necessary.
Leatherbury further testified that the “time expended on each task” was
reasonable considering the time and labor required. The rates charged were
reasonable considering the fee customarily charged for similar legal services and the
experience, reputation, and ability of Calzada and Prather.
Thus, appellants presented evidence that the fees attributable solely to
defending against Martindale’s claims totaled $10,832.50, the fees attributable
solely to defending against Hurst’s claims totaled $9,430.43, and the fees for work
that was not reasonably segregable, and for which Martindale and Hurst were jointly
and severally liable, totaled $50,071.00. They presented evidence of (1) the
particular services performed, (2) who performed the services, (3) when the services
were performed, (4) the reasonable amount of time required to perform the services,
and (5) the reasonable hourly rate for each person performing such services. See
21
Rohrmoos Venture, 578 S.W.3d at 498. The evidence informed the trial court of the
time spent on specific tasks and enabled it to meaningfully review the requested fees.
See Long, 442 S.W.3d at 255. Because the base lodestar calculation is supported by
sufficient evidence, there is a presumption that it reflects the reasonable attorney’s
fees that could be shifted to appellees in this case. See Rohrmoos Venture, 578
S.W.3d at 499.
In its final judgment, however, the trial court awarded appellants “attorney’s
fees, court costs and expenses” against Martindale in the amount of $9,000.00 and
against Hurst in the amount of $7,000.00. The record does not reflect that findings
of fact and conclusions of law were requested or filed. We next consider whether
evidence of other considerations overcame the presumption of reasonableness. See
id. at 501.
2. Adjustments to Base Lodestar Calculation
Appellees, as fee opponents seeking a reduction, had the burden of providing
specific evidence to overcome the presumptive reasonableness of the base lodestar
calculation. See id. To controvert appellants’ evidence in support of their fees,
appellees presented the affidavits of their experts, Brantley and Dill.
As a threshold matter, appellants, in a sub-issue on appeal, argue that the trial
court erred in considering Brantley’s and Dill’s affidavits because, inter alia, their
testimony was conclusory and therefore constituted no evidence.
22
“[C]onclusory testimony cannot support a judgment because it is considered
no evidence.” Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572
S.W.3d 213, 222–23 (Tex. 2019) (internal quotations omitted). “[A]lthough expert
opinion testimony often provides valuable evidence in a case, ‘it is the basis of the
witness’s opinion, and not the witness’s qualifications or his bare opinions alone, that
can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse
dixit of a credentialed witness.’” Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462,
470–71 (Tex. 2005) (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)). A
witness’s affidavit is conclusory if he offers nothing more than unexplained
conclusions or opinions by failing to specify the facts on which his conclusions or
opinions rest. See Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d
380, 389 n.32 (Tex. 2008); Brookshire Katy Drainage Dist. v. Lily Gardens, 333
S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Rather, the
expert must link his conclusions to the facts, explaining the basis of his assertions.
Bombardier Aerospace, 572 S.W.3d at 223.
Appellees assert that appellants failed to preserve this point. However, “[a]
party may challenge an expert’s testimony as conclusory, making a no-evidence
challenge, even when the party did not object to its admissibility at trial.” Id.
In determining whether Brantley’s and Dill’s affidavits are conclusory, and
therefore constitute no evidence, we consider their affidavit testimony in the light
23
most favorable to the trial court’s judgment, indulging every reasonable inference in
support. See id.
In his affidavit, Brantley testified that he has been a licensed attorney in Texas
since 1985. He is board certified in personal injury trial law and a partner at West,
Webb, Albritton & Gentry, P.C. (“WWAG”), in Brazos County, Texas. His practice
includes Grimes County, he has prosecuted and defended TCPA cases, and he is
familiar with rates and fees for such cases in Grimes County. He testified that, based
on his review of Calzada’s affidavits and attached billing invoices, he concluded that
the materials were “insufficient to support a finding of reasonable attorney’s fees
because [they] lack specificity to determine the work performed and how much time
the work required.” Specifically, the billing invoices were “heavily redacted” and
thus it was “virtually impossible” for the trial court to ascertain “what services were
performed, for whom, and for what.” In addition, the fees and expenses sought were
“unreasonable” and “in excess of the fee customarily charged in Grimes County for
similar legal services.” That is, he asserted that the fees were simply too high.
The record does not support that the invoices are so “heavily redacted” that it
was “virtually impossible” for the trial court to ascertain “what services were
performed, for whom, and for what.” Rather, as discussed above, appellants’
evidence demonstrated the services performed, who performed the services, when
the services were performed, the reasonable amount of time required to perform the
24
services, and the reasonable hourly rate for each person performing such services.
And, Brantley simply asserted that the fees were too high. An affidavit filed by non-
movant’s counsel that simply criticizes the fees sought by the movant as
unreasonable without setting forth the basis for his opinion, as here, is conclusory.
See Karen Corp. v. The Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 126
(Tex. App.—Fort Worth 2003, pet. denied); Basin Credit Consultants, Inc. v.
Obregon, 2 S.W.3d 372, 373–74 (Tex. App.—San Antonio 1999, pet. denied). Thus,
Brantley’s affidavit constitutes no evidence. See Bombardier Aerospace, 572
S.W.3d at 222–23.
Dill, in his affidavit, testified that he has been a licensed attorney in Texas
since 1992. He is an attorney at WWAG, practices in Grimes County, has “handled
civil matters,” and “has reviewed fee bills from other attorneys and firms practicing
law in Grimes County.” He testified, based on his review of the affidavits of Calzada
and Brantley, that he found Calzada’s “claims in her affidavits that her clients are
entitled to recovery of $54,643.69. . . to be neither reasonable nor necessary.”
Rather, “it appear[ed] that a reasonable and necessary fee on behalf of Ms. Calzada’s
clients would be $9,000.00,” in total. Dill testified that the “rates are too high and
extraneous work was performed.” Specifically, a rate of $250 per hour for an
attorney in Grimes County with 7 years of experience is “too high.” He asserted
that, “[g]iven Ms. Calzada’s apparent mastery of Chapter 27, she should have known
25
that, in the lawsuit at hand, all she had to do was file an answer and immediately
move for summary judgment.” Further, he asserted, Calzada performed work that
was “largely unnecessary, as her own fee bills state that opposing counsel contacted
her” after she filed the interlocutory appeal and stated that no appellees’ brief would
be filed. He asserted that such “conceded defeat” and “thus end[ed] the dispute.”
Because Dill offered no factual basis for his opinion that the fees appellants
sought were unreasonable and “too high” and that a reasonable fee “would be
$9,000.00,” his opinion is conclusory. See Obregon, 2 S.W.3d at 374 (holding
affidavit in which affiant failed to set forth basis for his opinion as to what reasonable
fee would be was conclusory). Although Dill testified that Calzada performed
“extraneous work,” he seemed to confuse TCPA motions to dismiss with summary-
judgment practice. See Gascamp v. WSP USA, Inc., 596 S.W.3d 457, 467–68 (Tex.
App.—Houston [1st Dist.] 2020, pet. dism’d) (“While a motion to dismiss under the
TCPA constitutes a claim for affirmative relief, a motion for summary judgment
does not.”). He incorrectly noted that a TCPA motion to dismiss does not require a
hearing. See TEX. CIV. PRAC. & REM. CODE § 27.004 (requiring hearing). And, he
seemed to confuse electing not to file an appellee’s brief with “ending” this dispute,
despite the outstanding mandatory statutory attorney’s fees, costs, expenses, and
sanctions issues. See id. § 27.009 (providing that trial court “shall award” movant
26
court costs, reasonable attorney’s fees, and other expenses incurred, along with
sanctions to deter party who brought legal action from bringing similar actions).
We conclude that Brantley’s and Dill’s affidavits are conclusory and therefore
do not constitute evidence to overcome the presumptive reasonableness of the base
lodestar calculation. See Rohrmoos Venture, 578 S.W.3d at 501.
The Texas Supreme Court has noted, however, that even if a fee claimant’s
testimony is uncontroverted, a trial court is not obligated to award the requested
amount. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547–48 (Tex. 2009)
(citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)).
Attorney’s fees may be proven as a matter of law in some cases by uncontroverted
expert testimony if it is (1) readily controvertible if untrue; (2) clear, direct, and
positive; and (3) uncontradicted by the “attendant circumstances.” Ragsdale, 801
S.W.3d at 882. Such attendant circumstances may indicate that the claimed
attorney’s fees are unreasonable or incredible. Id.
Texas law requires that the recovery of attorney’s fees be reasonable under
the particular circumstances of the case and that it bear some reasonable relationship
to the amount in controversy. USAA Cty. Mut. Ins. Co. v. Cook, 241 S.W.3d 93, 103
(Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Arthur Andersen & Co.,
945 S.W.2d at 818 (considering amount in controversy); Wayland, 711 S.W.2d at
233 (“One of the factors in determining the reasonableness of attorney’s fees is the
27
amount of damages awarded.”). A factfinder must consider the amount of money
involved. Patrick W.Y. Tam Trust, 296 S.W.3d at 548. “When determining an
appropriate fee award, the trial court is entitled to examine the entire record and to
view the matter in light of the amount in controversy, the nature of the case, and his
or her personal experience as a lawyer or judge.” Land v. Land, 561 S.W.3d 624,
639 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (internal quotations
omitted); Keith v. Keith, 221 S.W.3d 156, 169 (Tex. App.—Houston [1st Dist.]
2006, no pet.).
Here, the record shows that Martindale and Hurst sought “less than
$100,000.00 including damages of any kind, penalties, costs, expenses, pre-
judgment interest and attorney fees.” However, appellants sought $73,605.12 in
attorney’s fees and costs.11 Thus, the trial court could have reasonably applied some
reduction to the attorney’s fee awards based on this consideration. See Rohrmoos
Venture, 578 S.W.3d at 498–500. This is, however, only one factor in the analysis.
See Cook, 241 S.W.3d at 103.
11
Appellants presented evidence that the fees attributable solely to defending against
Martindale’s claims totaled $10,832.50, the fees attributable solely to defending
against Hurst’s claims totaled $9,430.43, and the fees for work that was not
reasonably segregable, and for which Martindale and Hurst were jointly and
severally liable, totaled $50,071.00. Appellants also presented evidence that their
costs and expenses, including expert fees, totaled $3,271.19.
28
In sum, the version of the TCPA applicable to this case requires a trial court
that orders dismissal of a legal action, as here, to award the movants “reasonable
attorney’s fees . . . incurred in defending against the legal action.” See TEX. CIV.
PRAC. & REM. CODE § 27.009(a)(1). A “reasonable” attorney’s fee is “one that is
not excessive or extreme, but rather moderate or fair.” Sullivan, 488 S.W.3d at 299.
Because appellants supported the base lodestar calculation with sufficient evidence,
there is a “strong presumption” that it reflects the reasonable attorney’s fees that can
be shifted to appellees in this case. See Rohrmoos Venture, 578 S.W.3d at 499. And,
appellees’ affidavits do not constitute evidence to overcome the presumptive
reasonableness of the base lodestar figure. See id. at 501. Even when a fee
claimant’s testimony is uncontroverted, a trial court is not obligated to award the
requested amount. Smith, 296 S.W.3d at 547–48; see Rohrmoos Venture, 578
S.W.3d at 502 (“The lodestar method was never intended to be conclusive in all
circumstances[.]”). However, it is in “rare circumstances,” in which the lodestar
method “does not adequately take into account a factor that may properly be
considered in determining a reasonable fee,” that the presumption may be overcome.
Rohrmoos Venture, 578 S.W.3d at 502; see Johari v. Ayva Ctr. LLC, No. 14-17-
00912-CV, 2020 WL 897385, at *2 (Tex. App.—Houston [14th Dist.] Feb. 25, 2020,
no pet.) (mem. op.) (noting that “exceptional circumstances” justify reductions to
base lodestar figure).
29
The record shows that this case began in 2017, and appellants immediately
moved for dismissal. They have since spent 4 years disposing of the claims against
them and recovering mandatory statutory attorney’s fees. The trial court’s award to
them of “attorney’s fees, court costs and expenses” of $9,000 against Martindale and
$7,000 against Hurst represents (less appellants’ evidence of costs incurred) just
17% of appellants’ evidence of attorney’s fees incurred. That is, their award was
reduced to approximately $1,600 in attorney’s fees per appellant, per year.
Although we recognize that appellants were not necessarily entitled to recover
all of their requested attorney’s fees, see Ragsdale, 801 S.W.2d at 882, they were
entitled to their reasonable attorney’s fees incurred. See TEX. CIV. PRAC. & REM.
CODE § 27.009(a)(1).
We conclude that the trial court’s award of trial attorney’s fees is arbitrary,
unreasonable, and without reference to guiding principles, because it bears no
relationship to the uncontroverted evidence of attorney’s fees incurred. See Goode,
943 S.W.2d at 446; Urquhart v. Calkins, No. 01-17-00256-CV, 2018 WL 3352919,
at *4 (Tex. App.—Houston [1st Dist.] July 10, 2018, pet. denied) (mem. op.); see,
e.g., Mogged v. Lindamood, No. 02-18-00126-CV, 2020 WL 7074390, at *7–8, 19
(Tex. App.—Fort Worth Dec. 3, 2020, pet. denied) (mem. op.) (holding award of
22% of requested attorney’s fees was against great weight and preponderance of
evidence, and thus constituted abuse of discretion, and remanding for
30
redetermination); Fiamma Statler, LP v. Challis, No. 02-18-00374-CV, 2020 WL
6334470, at *18 (Tex. App.—Fort Worth Oct. 29, 2020, no pet.) (mem. op.) (holding
trial court abused its discretion in awarding only 5% of attorney’s fees incurred); cf.
Snowhite Textile & Furnishings, Inc. v. Innvision Hosp., Inc., No. 05-18-01447-CV,
2020 WL 7332677, at *15 (Tex. App.—Dallas Dec. 14, 2020, no pet.) (holding
award of 85% of attorney’s fees incurred was neither arbitrary nor unreasonable).
Further, appellants argue that the trial court erred in not awarding trial court
costs12 and expenses because such awards are mandatory under the TCPA. When a
trial court dismisses a claim pursuant to the TCPA, it is also required to award costs
and expenses incurred.13 TEX. CIV. PRAC. & REM. CODE § 27.009. Here, as
discussed above, appellants presented uncontroverted evidence of costs and
expenses incurred, including expert fees of $1,312.50, totaling $3,271.19. The trial
court’s final judgment, which combines “attorney’s fees, court costs, and expenses,”
does not specify the amount of costs and expenses, if any, that it actually awarded.
See Urquhart, 2018 WL 3352919, at *5.
12
Appellants also argue that the trial court “violated this Court’s mandate by not
awarding appellate costs in the first appeal.” The record shows that this Court, in
its mandate, ordered that Hurst and Martindale, “jointly and severally, pay all
appellate costs.” Nothing in this Court’s mandate directed the trial court to award
appellate costs.
13
Appellants do not challenge the trial court’s award of sanctions. See TEX. CIV.
PRAC. & REM. CODE § 27.009.
31
Accordingly, we hold that the trial court erred in awarding attorney’s fees.
costs, and expenses. Although appellants urge this Court to render an award of
attorney’s fees, costs, and expenses, we conclude that these issues should be
remanded for a redetermination. See Sullivan, 488 S.W.3d at 299 (remanding TCPA
attorney’s fees issue, noting that “reasonable” attorney’s fee is one that is “fair and
moderate” and that determination thereof rests within trial court’s sound discretion);
see, e.g., Serafine v. Blunt, No. 03-16-00131-CV, 2017 WL 2224528, at *7 (Tex.
App.—Austin May 19, 2017, pet. denied) (mem. op.) (declining to render award of
TCPA attorney’s fees and concluding that proper disposition was to remand for
redetermination).
We sustain appellants’ first and second issues.
3. Appellate Attorney’s Fees
In their third issue, appellants assert that the trial court erred in failing to award
them the full amount of their requested appellate attorney’s fees because these
amounts were uncontroverted.
When, as here, trial attorney’s fees are mandatory under statute, then appellate
attorney’s fees are also mandatory when proof of reasonable fees is presented. See
Ventling v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015). And, a prevailing party in
the trial court may recover appellate attorney’s fees as a successful appellant. Id. at
155. However, a party cannot complain on appeal that a trial court took a specific
32
action that the complaining party requested. Tittizer v. Union Gas Corp., 171
S.W.3d 857, 862 (Tex. 2005).
The record shows that Calzada testified in her affidavit that, based on her prior
experience working on appeals of this nature, “the following amounts should be
awarded should an appeal of this Court’s ruling be undertaken by either Plaintiff
successfully”:
a. In the event of an appeal to the Court of Appeals requiring
briefing: an additional $40,000.00;
b. In the event of oral argument in the Court of Appeals: an
additional $15,000.00;
c. In the event of a Petition for Review to the Texas Supreme Court:
an additional $20,000.00;
d. In the events of merits briefing to the Texas Supreme Court: an
additional $40,000.00; and
e. In the event of oral argument in the Texas Supreme Court: an
additional $20,000.00.
(Emphasis added.)
Accordingly, the trial court ordered that “the following conditional attorney’s
fees . . . be awarded to [Trice] should an unsuccessful appeal of the Court’s ruling
be undertaken by Plaintiff”:
a. In the event of an appeal to the Court of Appeals requiring
briefing: an additional $3,000.00;
b. In the event of oral argument in the Court of Appeals: an
additional $1,500.00;
c. In the event of a Petition for Review to the Texas Supreme Court:
an additional $3,000.00;
33
d. In the events of merits briefing to the Texas Supreme Court: an
additional $2,500.00; and
e. In the event of oral argument in the Texas Supreme Court: an
additional $1,500.00.
(Emphasis added.)
Thus, based on appellants’ request and evidence in support, the trial court
awarded appellate attorney’s fees only with respect to an appeal by Hurst or
Martindale, and not with respect to an appeal by appellants. Because appellants
invited the issue of which they now complain, any error by the trial court in awarding
appellate attorney’s fees is waived. See C.M. Asfahl Agency v. Tensor, Inc., 135
S.W.3d 768, 785 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“A party fails to
preserve error . . . when that party waives, or invites, the alleged error. . . .”).
We overrule appellants’ third issue.
Conclusion
We reverse only the portion of the trial court’s judgment awarding appellants
“attorney’s fees, court costs and expenses” against Martindale in the amount of
$9,000.00 and against Hurst in the amount of $7,000.00. We remand these issues to
the trial court for a redetermination of reasonable attorney’s fees, costs, and expenses
consistent with this opinion.14 Redetermination of these matters will be based upon
the evidence provided to the trial court by the litigants prior to the entry of its final
14
See Long v. Griffin, 442 S.W.3d 253, 256 (Tex. 2014).
34
judgment signed on June 25, 2019. The trial court may also award appellants
reasonable attorney’s fees, costs, and expenses incurred during the current remand
and evidence may be taken on those issues.15 We affirm the trial court’s judgment in
all other respects.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
Goodman, J., dissenting.
15
See Sullivan v. Abraham, No. 07-17-00125-CV, 2018 WL 845615, at *10 (Tex. App.
—Amarillo Feb. 13, 2018, no pet.) (mem. op.).
35